Who not fected thereby. af Expenses of ref erees. When order of SEC. 407. But such judgment and partition shall not affect any tenants for years or for life of the whole of the property which is the subject of partition; nor shall such judgment or partition preclude any person, except such as are specified in the last section, from claiming title to the property in question, or from controverting the title of the parties between whom the partition shall have been made. SEC. 408. The expenses of the referees, including those of a surveyor and his assistants, when employed, shall be ascertained and allowed by the court, and the amount thereof, together with the fees allowed by law to the referees, shall be paid by the plaintiff, and may be allowed as part of the charges. SEC. 409. If the referees report to the court that the property of sale may be made which partition shall have been adjudged, or any separate portion upon report of ref- thereof, is so situated that a partition thereof can not be made without great prejudice to the owners and the court is satisfied that such report is correct, it may thereupon, by an order, direct the referees to sell the property or separate portion thereof so situated. erees. In case of partial sale, how estate for life or years set off. When reference ordered to ascer SEC. 410. When a part of the property only is ordered to be sold, if there be an estate for life or years in an undivided share of the property, the whole of such estate may be set off in any part of the property not ordered to be sold. SEC. 411. If an order of sale be made, and before a distribution of the proceeds thereof, the plaintiffs shall produce to the court a certifitain lien creditors. cate showing the liens remaining unsatisfied, if any, by judgment upon the property, or any portion thereof, and unless he do so the court shall order a referee to ascertain them. Referees to as liens. SEC. 412. If it appear by such certificate, or reference in case the certain amount of certificate is not produced, that any such liens exist, the court shall appoint a referee to ascertain what amount remains due thereon or secured thereby, respectively, and the order of priority in which they are entitled to be paid out of the property. Notice to lien creditors. Duties of referee. Exceptions to report. Effect of confir SEC. 413. The plaintiff must cause a notice to be served, at least ten days before the time for appearance, on each person having such lien by judgment to appear before the referee at a specified time and place to make proof by his own affidavit or otherwise of the true amount due, or to become due, contingently or absolutely, on his judgment. SEC. 414. The referee shall receive the evidence and report the names of the creditors whose liens are established, the amounts thereon or secured thereby, and their priority, respectively, and whether contingent or absolute. He shall attach to his report the proof of service of the notices and the evidence before him. SEC. 415. The report of the referee may be excepted to by either party to the action or to the proceedings before the referee, in like manner and with like effect as in ordinary cases. If a lien creditor be absent from the district, or his residence therein be unknown, and that fact appear by affidavit, the court or judge thereof may by order direct that service of the notice may be made upon his agent or attorney of record or by publication thereof for such time and in such manner as the order may prescribe. SEC. 416. If the report of the referee be confirmed, the order of mation of report. confirmation is binding and conclusive upon all parties to the action and upon the lien creditors who have been duly served with the notice to appear before the referee as provided in section four hundred and thirteen. Distribution of proceeds of sale. SEC. 417. The proceeds of the sale of the incumbered property shall First. To pay its just proportion of the general costs of the action; Third. To satisfy the several liens, in 'their order of priority, by ment; Fourth. The residue among the owners of the property sold, according to their respective shares. When party may haust other securi SEC. 418. Whenever any party to the action or who holds a lien upon the property or any part thereof has other securities for the payment be required to exof the amount of such lien, the court may, in its discretion, order such ties. securities to be exhausted before a distribution of the proceeds of sale, or may order a just deduction to be made from the amount of the lien on the property on account thereof. SEC. 419. The proceedings to ascertain the amount of the liens and Proceedings not to determine their priority, as above provided, or those hereinafter to delay or affect certain parties. authorized to determine the rights of parties to funds paid into court, shall not delay the sale nor affect any other party whose rights are not involved in such proceedings. SEC. 420. The proceeds of sale and the securities taken by the referees, or any part thereof, shall be distributed by them to the persons entitled thereto whenever the court so directs. But if no such direction be given all such proceeds and securities shall be paid into court or deposited as directed by the court. Proceeds of sale to be distributed or paid into court. When action to SEC. 421. When the proceeds of sales of any shares or parcel belonging to persons who are parties to the action, and who are known, continue. are paid into court, the action may be continued as between such parties for the determination of their respective claims thereto, which shall be ascertained and adjudged by the court. Further testimony may be taken in court, or by a referee, at the discretion of the court, and the court may, if necessary, require such parties to present the facts or law in controversy, by pleading, as in an original action. Sale by referees, SEC. 422. All sales of real property made by the referees shall be made by public auction to the highest bidder, in the manner required how made. for the sale of real property on execution. The notice shall state the time, place, and terms of sale, and if the property or any part of it is to be sold subject to a prior estate, charge, or lien, that shall be stated in the notice. Court may direct credit. SEC. 423. The court shall, in the order of sale, direct the terms of credit which may be allowed for the purchase money of any portion of sale to be made on the premises of which it may direct a sale on credit; and for that portion of which the purchase money is required by the provisions hereinafter contained to be invested for the benefit of unknown owners, infants, and parties out of the district. SEC. 424. The referees may take separate mortgages and other securities for the whole or convenient portions of the purchase money of such parts of the property as are directed by the court to be sold on credit, in the name of the clerk of the court, and his successor in office; and for the shares of any known owner of full age, in the name of such owner. Mortgages and how taken by refother securities, erees. Estate for life or SEC. 425. When the estate of any tenant for life or years, in any undivided part of the property in question, shall have been admitted years, how disby the parties, or ascertained by the court to be existing at the time posed of. of the order of sale, and the person entitled to such estate shall have been made a party to the action, such estate may be first set off out of any part of the property, and a sale made of such parcel, subject to the prior unsold estate of such tenant therein; but if in the judgment of the court a due regard to the interest of all the parties require that such estate be also sold, the sale may be so ordered. SEC. 426. Any person entitled to an estate for life or years in any undivided part of the property, whose estates shall have been sold, shall be entitled to receive such sum in gross as may be deemed upon principles of law applicable to annuities a reasonable satisfaction for such estate, and which the person so entitled shall consent to accept instead thereof, by an instrument duly acknowledged or proved in the same manner as deeds for the purpose of record, and filed with the clerk. Compensation of such estate in case of sale. If consent not of such estate. SEC. 427. If such consent be not given, as provided in the last pregiven, courts to de- ceding section, before the report of sale, the court shall ascertain and termine the value determine what proportion of the proceeds of the sale, after deducting expenses, will be a just and reasonable sum to be invested for the benefit of the person entitled to such estate for life or years, and shall order the same to be deposited in court for that purpose. Rule for the de SEC. 428. The proportion of the proceeds of the sale to be invested termination of the as provided in the section last preceding shall be ascertained and determined in the several cases as follows: value. Rights of unknown tenants to be protected. Inchoate or con First. If an estate in dower be included in the order of sale, its proportion shall be one-third of the proceeds of the sale of the property, or of the sale of the undivided share in such property upon which the claim of dower existed: Second. If an estate by the curtesy, or other estate for life or years, be included in the order of sale, its proportion shall be the whole proceeds of the sale of the property, or of the sale of the undivided share thereof in which such estate may be. And in all cases the proportion of the expenses of the proceeding shall be deducted from the proceeds of the sale. SEC. 429. If the persons entitled to such estate for life or years be unknown, the court shall provide for the protection of their rights in the same manner, as far as may be, as if they were known and had appeared. SEC. 430. In all cases of sales in partition, when it appears that a tingent interests, married woman has an inchoate right of dower in any of the property how provided for. sold, or that any person has a vested or contingent future right or estate therein, the court shall ascertain and settle the proportional value of such inchoate, contingent, or vested right or estate according to the principles of law applicable to annuities and survivorship, and shall direct such proportion of the proceeds of sale to be invested, secured, or paid over in such manner as to protect the rights and interests of the parties. Terms of sale to the time of sale. Referees not to purchase. SEC. 431. In all cases of sales of property, the terms shall be made be made known at known at the time; and if the premises consist of distinct farms or lots, they shall be sold separately, or otherwise if the court so directs. SEC. 432. Neither of the referees, nor any person for the benefit of either of them, shall be interested in any purchase; nor shall the guardian of an infant party be interested in the purchase of any real property, being the subject of the action, except for the benefit of the infant. All sales contrary to the provisions of this section shall be void. Report of referees, what to contain. Report may be excepted to. -effect of firmation. con SEC. 433. After completing the sale, the referees shall report the same to the court, with a description of the different parcels of lands sold to each purchaser, the name of the purchaser, the price paid or secured, the terms and conditions of the sale, and the securities, if any, taken. The report shall be filed with the clerk. SEC. 434. The report of sale may be excepted to by any party entitled to a share of the proceeds, in like manner and with like effect as in ordinary cases. If the sale be confirmed, the order of confirmation shall direct the referees to execute conveyances and take securities pursuant to such sale, which acts they are hereby authorized to do. Such order shall have the effect to discharge the property of the estate or interest of every person mentioned in section four hundred and six, and of tenants for life or years of the property sold, and shall be binding and conclusive upon all such persons, as if the same were a decree for the partition of such property, and upon all persons whomsoever as to the regularity of the proceedings concerning such sale, except as provided in section four hundred and thirty-two. Proceedings SEC. 435. When a party entitled to a share of the property or an when a party or incumbrancer entitled to have his lien paid out of the sale becomes a comes purchaser. purchaser, the referees may take his receipt for so much of the proceeds of the sale as belongs to him. incumbrancer be When and what be invested. SEC. 436. When there are proceeds of sale belonging to an unknown owner, or to a person without the district who has no legal representa- proceeds of sale to tives within it, or when there are proceeds arising from the sale of an estate subject to the prior estate of a tenant for life or years, which are paid into the court or otherwise deposited by order of the court, the same may be invested under such order in securities on interest for the benefit of the persons entitled thereto. In whose name investments made. -in name of SEC. 437. When the security for the proceeds of sale is taken, or when an investment of any such proceeds is made, it shall be done, securities taken or except as herein otherwise provided, in the name of the clerk of the court and his successors in office, who shall hold the same for the use and benefit of the parties interested, subject to the order of the court. SEC. 438. When security is taken by the referees on a sale, and the parties interested in such security, by an instrument in writing under party entitled. their hands delivered to the referee, agree upon the shares and proportions to which they are respectively entitled, or when shares and proportions have been previously adjudged by the court, such securities shall be taken in the names of and payable to the parties respectively entitled thereto, and shall be delivered to such parties upon their receipt therefor. Such agreement and receipt shall be returned and filed with the clerk. When clerk to SEC. 439. The clerk in whose name a security is taken or by whom an investment is made, and his successors in office, shall receive the keep account and interest and principal as it becomes due, and apply and invest the same receive interest. as the court may direct; and shall file in his office all securities taken, and keep an account in a book provided and kept for that purpose in the clerk's office, free for inspection by all persons, of investments and moneys received by him thereon, and the disposition thereof. When equal par SEC. 440. When it appears that partition can not be made equal between the parties, according to their respective rights, without preju- tition can not be dice to the rights and interests of some of them, the court may adjudge made, court may adjudge compencompensation to be made by one party to another on account of ine- sation. quality of partition; but such compensation shall not be required to be made to others by owners unknown, nor by infants unless in case of an infant it appear that he has personal property sufficient for that purpose, and that his interest will be promoted thereby. SEC. 441. When the share of an infant is sold the proceeds of the When proceedsale may be paid by the referees making the sale to his general guard- ings of sale paid to ian, or the special guardian appointed for him in the action, upon such guardian of infant. guardian giving the security required by law or directed by order of the court. prop person. SEC. 442. The guardian who may be entitled to the custody and When paid to management of the estate of an insane person, or other person adjudged guardian of insane incapable of conducting his own affairs, whose interest in real erty shall have been sold, may receive in behalf of such person his share of the proceeds of such real property from the referees on executing, with sufficient sureties, an undertaking, approved by the judge of the court, that he will faithfully discharge the trust reposed in him, and will render a true and just account to the person entitled, or to his legal representatives. Costs of parti tioned. SEC. 443. The costs of partition, including fees of referees and other disbursements, shall be paid by the parties respectively entitled tion, how apporto share in the lands divided, in proportion to their respective interests. therein, and may be included and specified in the judgment. In that case they shall be a lien on the several shares, and the judgment may be enforced by execution against the parties separately. When, however, a litigation arises between some of the parties only, the court may require the expenses of such litigation to be paid by the parties thereto, or any of them. SUP R S VOL 2-85 CHAPTER FORTY-FOUR. OF ACTIONS OF AN EQUITABLE NATURE BY AND AGAINST EXECUTORS, In what actions 444. In what actions chapter 37 shall 445. An action against next of kin by 446. Each liable for the whole amount 447. Next of kin may maintain an action 448. An action against legatees by cred- 449. Apportionment of costs in an action 451. Heirs or devisees liable for the debts not liable. SEC. 444. The provisions of chapter thirty-seven of this title shall chapter 37 shall apply to actions of an equitable nature by and against executors and apply. administrators, except as in this chapter otherwise or specially provided. Sections three hundred and fifty-one, three hundred and fiftytwo, and three hundred and fifty-three of such chapter shall not so apply. All causes of actions of an equitable nature by one person against another, however arising, survive to the personal representatives of the former and against the personal representatives of the latter. When the cause of action survives, as herein provided, the executors or administrators may maintain an action of an equitable nature thereon against the party against whom the cause of action accrued, or after his death against his personal representatives. An action against SEC. 445. The next of kin of a deceased person are liable to an action next of kin by by a creditor of the estate to recover the distributive shares received creditors of the es- out of such estate, or to so much thereof as may be necessary to satisfy his debt. The action may be against all the next of kin jointly or against any one or more of them severally. tate. Each liable for received. SEC. 446. In such action the plaintiff may recover the value of all the whole amount the assets received by all the defendants in the action if necessary to satisfy his debt; and the amount of the recovery shall be apportioned among the defendants, in proporton to the value of the assets received by each; and no allowance or deduction shall be made from such amount on account of there being other next of kin to whom assets have also been delivered. Next of kin may maintain an action to compel contribution. SEC. 447. Any one of the next of kin against whom a recovery is had pursuant to section four hundred and forty-six may maintain an action against all the other next of kin of the deceased person to whom any such assets have been delivered jointly, or against any of them separately, for a just and equal contribution, and may recover of each defendant such amount as shall be in the same proportion to the whole sum collected of the plaintiff as the value of the assets delivered to such defendant bore to the value of all the assets delivered to all the next of kin of the deceased. An action SEC. 448. Legatees are liable to an action by a creditor of testator against legatees by creditor of the tes- to recover the value of any legacy received by them. The action may be maintained against all the legatees jointly or against any one or tator. |